Making the Right Choice: Differences Between Divorce and Legal Separation

By: Ken Alan
Last Update: October 31, 2016


When a marriage isn’t working out, it’s not uncommon for a couple to go their separate ways and live apart. Perhaps this begins as a temporary measure or as a starting point to deal with issues in a union. Often this leads people to conclude their marriage is irreparably broken. The next step may seem obvious: divorce. But, increasingly, more and more couples are opting for legal separation, to continue to live apart while remaining married, rather than go through with divorce.

Deciding whether to opt for a divorce or legal separation is a big choice. Each has its own benefits and drawbacks. As usual in such matters, the decision depends on numerous factors unique to each case and making sure you understand the ramifications of each is vital.

Differences Between Divorce and Legal Separation 

The biggest and most obvious difference between divorce and legal separation is that in the latter, the couple remains married, while in the former the marriage ends. 

Divorce is the legal cancellation of a marital union. The court grants the couple in question the ability to go about their business unfettered by the bonds of marriage. 

In a legal separation, on the other hand, though for all intents and purposes the marriage is over, it’s not in a technical sense. You may live your life as a single person, but you have to mark married on forms. You can’t remarry. You can still inherit property from your spouse.

Similarities Between Divorce and Legal Separation

In many ways, divorce and legal separation are quite similar. One is final, while the other is less absolute—perhaps you harbor hope of reconciliation or have other reasons to remain married. Still, the end result is more or less the same, and legal separation often represents a de facto divorce.

Like in a divorce, a legal separation creates a binding, authoritative split between you and your spouse. The two sides must come to an agreement on almost all of the matters that pop up in dissolving a marriage. And there is a ruling to back it up.

The division of property, splitting up of shared assets and debts, forms a big part of a legal separation. If you have children, you’ll likely have to create a parenting plan that sets out custody, visitation, and the rest. In many cases, you may have to pay child support or provide spousal maintenance.

The end result may be different and less permanent, but on a mechanical level, divorce and legal separation often function in similar capacities.

Is Legal Separation the Right Choice?

Whether or not to divorce or pursue legal separation often boils down to personal preference. For instance, if you determine your marriage is over, but divorce isn’t an option due to religious or ethical reasons, this is one path. It’s also possible for two people to still love each other and care for one another, yet simply not be able to cohabitate.

Remaining married has economic perks as well. In some situations, filing taxes jointly may save a couple money. This isn’t true in all cases, but there can be savings. However, it’s important to talk to a financial professional to determine whether or not you meet the legal requirements.

Continuing health care is another potential upside to remaining married. Most employer-backed plans no longer cover an ex-spouse, so one of you may lose coverage. Again, like with taxes, some plans view legal separation in the same light as divorce, so make sure to dig into the fine print for the specifics. Still, in other cases, health coverage may endure. 

Government benefits like Social Security kicking in may also be motivation to stay wed. In marriages lasting 10 years or more, a spouse may be entitled to a greater share. When it comes to couples who are approaching the 10-year mark, some separate but don’t divorce until they cross that threshold. Military pensions often fall into a similar category.

If there are issues that need to be resolved, legal separation can also be a momentary stopping point on the road to divorce. It can provide time to deal with custody or financial matters, or even just breathing room to determine whether or not dissolving your marriage is the right choice. Living apart may offer a new perspective and clarity on your situation.

Oftentimes a legal separation can be the easier choice. It may be less traumatic for children, not to mention for the adults involved, and it may be less stressful to negotiate than a divorce. In many cases, you get the both the benefits of marriage as well as those of living apart.

Perils of Separation

Moving out and creating space in a difficult situation may seem like a good idea, but it comes with a number of significant dangers you need to be aware of. A legal separation involves a court order and concrete backing for any arrangements.

If you simply move out, however, you may wind up forfeiting a number of rights. If you and your spouse own a home together, you may lose your claim on the house. If you have kids, you may give up the chance to be the custodial parent. Without a written legal agreement that details the terms of your split, you may also remain on the hook for your spouse’s debts.

This decision can have a huge, lasting impact. While you may feel the need to get away, it is in your best interest to pause and examine all of the ramifications so you can protect yourself.

Whether to divorce or opt for a legal separation is a complex, convoluted question. Each set of circumstances is different, so each choice is a personal, individual one. There’s no one-size-fits-all roadmap, but being aware of the potential benefits and pitfalls will help you make an informed decision about what is right for you.

By:Ken Alan| September 19, 2016 | Considering Divorce | (0) Comments

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